SMH has the story here.

more analysis later.
updated: judgment now available on AustLII.
Further update: commentary will have to wait until after my classes today. But please consider this an open thread for any discussion!
Further Further Update: Warwick Rothnie has some very interesting thoughts on the case here. He’s certainly right about one thing. There’s a heckuva lot of food for thought in these judgments.

“Senator Kim Carr, Minister for Innovation, Industry, Science and Research, today called for written submissions on proposed reforms to Australia’s intellectual property (IP) system.

A strong and efficient IP system is a cornerstone of successful innovation.

The proposed reforms are designed to help Australian innovators take their inventions to a global marketplace and encourage foreign investors to bring their new technology to Australia.

This means growth both for our economy and our skilled workforce.

The call for submissions provides a valuable opportunity for interested parties to contribute to the Government’s work in strengthening Australia’s innovation sector and boosting the nation’s economic prosperity.

The multifaceted reforms aim to reduce barriers in the innovation landscape for researchers and inventors, allow patent claims to be resolved faster and strengthen penalties for counterfeiting and other serious forms of trade mark infringement.

The Australian Government is committed to working with business and professionals to get the balance right so the IP system can better serve innovation in Australia.”

Media Release here.
Discussion/Reform Papers on IP Australia Website here.

Submissions due by 8 May 2009.

According to the Exec Summaries of the two papers, the proposed reforms aim to improve the balance in the patent system by:

  1. raising the thresholds set for grant of a patent in Australia and better aligning Australia’s key
    patentability standards with standards in countries which are our major trading partners; and
  2. improving the scope and stringency of examination to reduce inconsistencies and give
    greater certainty in the validity of granted patents.
  3. introducing a statutory exemption covering certain experimental activities

Let the fun begin!

I’ve discovered podcasts. Yes, I know it’s a little late in the piece, but really, it’s been a pretty recent thing: since I (a) got an iPhone and (b) started walking to work every day. At half an hour each day, I get a lot of listening done and music doesn’t quite do it for me. And lo and behold, there are all these interesting things to listen to online. I want to promote one specific thing, which is actually not a podcast, but a Webinar:

Managing IP magazine’s Asia editor Peter Ollier will be conducting a live online interview with IP Australia director general Philip Noonan on Friday March 6 at 4pm Australian Eastern Standard Time (3pm for us Brisbanites).

The one-hour interview will cover topics such as the recommendations in Terry Cutler’s venturousaustralia report, innovative step and inventive step in Australia’s patent law, the controversial Anti Counterfeiting Trade Agreement and the impact of the credit crunch on patent and trade mark applications in Australia. Registration for this event is free. To register please go to Listeners will also be able to submit questions during the interview. Click here to go to the registration page.

Hey, how often do you get to hear about IP from the ‘horse’s mouth’, the dude in charge, so to speak? Think up your tricky questions about ACTA and the Innovation Review now! The other thing I wanted to mention was podcasts. There are a lot of cool podcasts out there. Apart from the wonderful material from our ABC, it’s worth highlighting:

  1. The IP Colloquium (run by Doug Lichtman, UCLA);
  2. The Software Freedom Law Center podcasts (all things open source)
  3. The amazing collection of stuff at iTunes U – lots of free lectures on all kinds of interesting things: from Berkeley, Stanford, LSE and other exciting places;
  4. Very cool.
  5. Digital Planet at the BBC
  6. Search Engine on CBC (Canadian Radio)
  7. Academic Earth (great lectures on all kinds of topics)

I’m sure there are others. Feel free to add them in the comments. Always looking for good new listening!

IP Australia is reviewing the penalties (criminal offences) and additional damages in trade mark law. Actually, they’ve been reviewing this for a while: we had the ACIP Review, and then an Options Paper (pdf) published by IP Australia back in November; submissions on the Options Paper close this week.

Anyway, I was just reading through the options paper again, and I noticed that IP Australia is proposing to adopt something like the tiered system of liability that we now have in the Copyright Act: or at least, some of it. They are proposing to have indictable offences for intentional trade mark infringement, and summary offences for negligent trade mark infringement. This, of course, is based on the Copyright Act system. And so I thought it was raising the question again: what kind of a silly standard for criminal liability for IP infringement is negligence? (more…)

Hi everyone (or at least, those of you who are still there. probably just an echo, right?). Been a while, hasn’t it?

I’d vowed to resist, so far as possible, the blogging thing on IP. There were good reasons for resisting: I have lots of other work to do; I need to spend time working on publishable material rather than current commentary; after my last post a certain friend and colleague started calling me Kimberlee ‘Sue the User’ Weatherall … (ok that last one was just funny). And, of course, there’s been plenty of people to fill the gap: Warwick Rothnie, Nic Suzor, the wonderful folks at the Australian Trade Marks Law Blog…

But you know, every now and then I get the urge to say something. So I’m not going to apologise for radio silence. But I am going to post. Sometimes. When I think something won’t be covered by anyone else!

Wonderful post from Professor Mark Davison on the Australian Trade Marks Blog. ‘Nuff said.

Does this site strike anyone else as, well, just a bit dodgy? “International validity for a lifetime”???

I’m very sad to hear of the death of Sir Hugh Laddie. Tributes are pouring in, of course. I’ll remember him for the 1995 Stephen Stewart lecture, “Copyright, Over-Strength, Over-Regulated, Over-Rated,” 18 E.I.PR. 253 (1996) – I read it the same year I first studied copyright, and it’s influenced my thinking ever since. His Modern Law of Copyright and Designs, too, is a constant standby when I teach: wonderful for its teasing out of the implications of rules through hypotheticals, cases, and more cases. He was a bold thinker, never cowed by IP orthodoxy (or the ECJ for that matter), and never shying away from the need for a strong, sensible IP system. He has been respected by all sides in the IP world – no mean feat in itself. He will be very much missed.

The IPKat has its own tribute; as does the IAM Blog and Howard Knopf, but for a sense of the man, you might want to look at Patry’s older post on his conversation with Sir Hugh after his decision to retire from the bench.

Update: Bill Patry’s heartfelt tribute.

AFACT have a new (I think?) set of resources for teaching copyright to school kids.You can write your own copyright law (results of that might be interesting). You can even make your own anti-piracy ad! yay! (of course, people have been doing that for a while now… and here…. and here….) :)

I’ve yet to have a proper look, but as Tama Leaver comments:

I’ve never read an educational resource before which feels the need to include this disclaimer (p. 4.):

The resource is not a propaganda exercise. It does make clear to students that there are harmful consequences from film piracy, but it does so through educationally valid processes. It is an educational approach that allows students to face a significant civics and citizenship issue: their role in a society where many of them and their peers are breaking the law.

Actually, what this kind of warning tells me is that this area is really fraught, and that it’s really hard to be seen as treading the line between teaching and propaganda. I wonder who AFACT consulted with, and what testing they did, on this material before publication?

ZDNet has some interesting discussion of different ISPs’ policies.

I mentioned yesterday the current debate over internet censorship in Australia. I should, at the same time, have mentioned a free event that UNSW’s Baker & McKenzie Cyberspace Law and Policy Centre is having next Thursday. Full webpage here with speakers/program/etc. Here’s the short version:

The UNSW Cyberspace Law and Policy Centre is hosting a forum to explore aspects of the Australian Government’s current Internet filtering and censorship proposals. The aim is to get beyond some of the more heated claims and counter-claims circulating at present and explore the underlying issues and constraints, hopefully giving room for various perspectives and arguments to be considered on their merits. …
Date/Time: Thursday 27 November 2008, 9:30 am for 10:00 to 2:30 pm
Location: Theatre G02, ground floor, Law Building F8, UNSW Kensington Campus, Sydney NSW
Cost: Free, but donations to help cover the cost will be accepted at the door.

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

  1. What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ‘repeat infringers’?
  2. How much responsibility will Australian courts put on intermediaries for ‘doing something’ about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ‘profiting from copyright wrongdoing’ – Kazaa with its P2P network, or Cooper with his ‘mp3sforfree’ website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ‘ordinary’ service providers?
  3. When the legislation requires that ISPs, in order to ‘gain absolution’ or immunity from damages, should ‘adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’ – what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ‘notice and terminate’ system that copyright owners have been pressing for? Will the government’s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement…?

More thoughts on the law side of things over the fold. (more…)

and all hell breaks loose, it seems. Sorry for the long radio silence: I’ve been on a research trip and not following things as closely as perhaps I should. A couple of general catch up notes:

  1. I would blog about the Internet Censorship material – I simply can’t believe that the Australian government is seriously wanting internet content filtering active in Australia – but to blog it would really be something of a waste – after all, there’s at least two other perfectly good sites for information about developments here: the wonderful Somebody Think of the Children, and of course, Dale Clapperton of the EFA and his Defending Scoundrels site and Irene Graham’s Libertus site. The EFA and others are doing good work on these issues. Want more? Go there!
  2. I would also blog about the IceTV case – it is, after all, one of the more significant ones lately to hit the High Court of Australia in copyright. However, it would probably be inappropriate to do so, since I’m a board member of one of the amicae that appeared in the case (the Australian Digital Alliance). I refer you to the AustLII transcripts of the hearing (Day 1, Day 2). I’ll comment once there is a judgment.
  3. ACTA developments continue. I was at a trade law conference in Washington last week and was surprised to hear a Deputy of the USTR endorse ACTA as one of the few “trade” agreements that could continue to move forward in this lame duck/pre-Obama time. I’ll have more to say on this in due course.

    And of course there’s the new case against an ISP for copyright infringement, noted in my last post. Can’t turn my back on you people, can I?

We’ve been expecting this might happen for a while. Now it has. From the Australian Federation Against Copyright Theft media release:

“Today, seven leading film companies and their affiliates and licensees filed a legal action against iiNet, a major Australian internet service provider. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, the Australian licensee of some of the infringed works. The companies seek a ruling that iiNet infringed copyright by failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorised use of copies of the companies’ films and TV programs by iiNet’s customers via its network.”

In other words, it’s the argument that an ISP is authorising infringement of copyright. Without seeing the statement of claim, can’t say much more, except this: this is the next ‘upping of the ante’: designed, no doubt, to increase the pressure on ISPs and the Internet Industry Association to negotiate on the so-called ‘three strikes’ proposal for a system for terminating internet access of alleged copyright infringers.

Interesting times. (and yes, I’d love more information if anyone has any…).

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